R v. Immigration Appellate Authority, Ex parte Secretary of State for the Home Department

R v IMMIGRATION APPELLATE AUTHORITY
ex parte SECRETARY OF STATE FOR THE HOME DEPARTMENT

CO/2952/97

22 October 1997

Queen's Bench Division: Lightman J

Asylum - appeals dismissed-fresh information submitted by representatives - Secretary of State refused to consider representations as constituting a fresh claim-purported notice of appeal against that refusal submitted to appellate authorities - whether special adjudicator had jurisdiction to determine whether a fresh claim had been made - whether a decision exclusively for the Secretary of State only to be challenged on judicial review. Asylum and Immigration Appeals Act 1993 ss. 2, 6, 8, sch. 2 paras. 2, 9; HC 395 paras. 328, 346

Application by the Secretary of State to prohibit the immigration appellate authority from entertaining an application by Mahmut Cakabay to appeal against the decision of the Secretary of State to refuse to consider new information submitted by his representatives as a fresh application for asylum.

Following the dismissal of appeals by Mahmut Cakabay against the refusal by the Secretary of State to grant him asylum, his representative submitted fresh information relating to his claim. The Secretary of State did not consider that the new information would increase the likelihood of the claim succeeding: he refused to accept that it formed a fresh claim. The representatives then sought to appeal to the immigration appellate authorities against that decision by serving a notice of appeal to a special adjudicator. They also instituted proceedings to move for judicial review of his refusal. The Secretary of State sought judicial review to secure an order prohibiting the appellate authority from entertaining the application.

The application for leave to move for judicial review by Mahmut Cakabay was adjourned and the court confined itself to determining the jurisdiction of the appellate authority.

Held:

1. It was for the Secretary of State alone to decide whether there had been a fresh application for asylum.

2. That decision was not a decision that fell within the ambit of section 8 of the 1993 Act.

3. It followed that there could be no appeal to a special adjudicator against that decision which accordingly if it were challenged, could only be challenged by way of judicial review.

R Plender QC and Miss E Grey for the Secretary of State

A Nicol QC and M Henderson for Mahmut Cakabay

Cases referred to in the judgment:

R v Fulham, Hammersmith and Kensington Rent Tribunal ex parte Zerek [1951] 2 KB 1: [1951] 1 All ER 482.

Williams & Glyn's Bank v Astro Dinamico Comp. Nav SA [1984] 1 WLR 438: [1984] 1 All ER 760.

Adolphus Lokko v Secretary of State for the Home Department [1990] Imm AR 111.

Secretary of State for the Home Department v Said Ken'aan [1990] Imm AR 544.

R v Secretary of State for the Home Department ex parte Arfi Abdi and ors [1993] Imm AR 35.

R v Secretary of State for the Home Department ex parte Manvinder Singh [1996] Imm AR 41.

Manvinder Singh v Secretary of State for the Home Department (unreported, CA, 9 December 1995).

Ademola Onibiyo v Secretary of State for the Home Department [1996] Imm AR 370: [1996] 2 All ER 901.

R v Secretary of State for the Home Department ex parte Senathirajah Ravichandran (No. 2) [1996] Imm AR 418.

R v Secretary of State for the Home Department ex parte Coskun Boybeyi (unreported, QBD, 24 January 1997).

Secretary of State for the Home Department v Coskun Boybeyi [1997] Imm AR 491.

Pai Yu Wong (unreported) (12602).

LIGHTMAN J: I have before me two applications for judicial review, the first by Mr. Cakabay*[1] and the second by the Secretary of State for the Home Department. They both revolve around a single issue of law of some importance in the field of immigration law relating to political asylum. An applicant may seek leave to enter or remain in the United Kingdom on the ground of political asylum. If this application fails, before he leaves the United Kingdom he may seek to make another application on the same ground. Only if this second application is an application based on significant credible material not available at the time of the first application and enjoys a realistic prospect of success will it constitute a "fresh" application and as such be entertained by the Secretary of State for the Home Department. The question raised is whether the Secretary of State is sole judge whether the second is a fresh application (subject only to the supervision of the court in judicial review proceedings) or whether an appeal lies against his decision (as against other decisions on applications for leave to enter on asylum grounds) to the immigration appellate authority, namely the special adjudicator and (with leave) from the special adjudicator to the Immigration Appeal Tribunal.

The facts

The issue before me is one of law and the parties are agreed that the facts are practically irrelevant. I shall however briefly summarise them.

Mr. Cakabay, a Turkish national, arrived at Ramsgate on 26 June 1996 and applied for leave to enter the United Kingdom on asylum grounds. His application was refused on 11 September 1996. His appeal to the special adjudicator against that refusal was dismissed on 27 March 1997. In considering the appeal the special adjudicator took account of Mr. Cakabay's claim that his brother Nurettin had been imprisoned in Turkey in March 1995 for aiding the PKK guerrillas. He did not consider that claim sufficiently relevant to Mr. Cakabay's own case to make any finding of fact in relation to it. His general conclusion was as follows:

"I did not find the Appellant to be remotely credible. I was satisfied beyond all reasonable doubt that the reasons given by the Appellant for his journey from Turkey to the United Kingdom bore no relationship to the truth. I was satisfied that the Appellant had sought to mislead the authorities at his initial interview, at his subsequent interview in August 1996 and in giving evidence to me".

Mr. Cakabay's application for leave to appeal to the Tribunal was refused on 21 April 1997. His application for leave to apply for judicial review of the decision of the Tribunal to refuse leave was refused by Laws J on 19 June 1997.

On 13 and 16 June 1997 his solicitors again wrote to "apply for asylum on behalf of our client" on the basis of "new information" that Mr. Cakabay's brother "is imprisoned in Turkey for his political activities". On 14 July 1997 the Secretary of State responded that the documents supplied with the letters of 13 and 16 June 1997 made "no difference to the likelihood of your claim succeeding":

"Your client does not claim to have been involved in any political activities with his brother Nurrettin. Moreover from 1990-1993 your client lived and worked in Saudi Arabia and by his own admission was unaware of his brother's activities and situation in Turkey. The Secretary of State does not therefore consider that his brother's alleged activities have any significance or bearing on your client's application for asylum".

In the same letter the Secretary of State doubted the authenticity of certain of the materials presented on 13 and 16 June 1997. In summary, the Secretary of State determined that Mr. Cakabay's representations did not constitute a fresh application for asylum and declined to entertain it as such. In response to further communications from Mr. Cakabay's solicitors the Secretary of State wrote to them on 28 July and 1 August 1997 stating that he adhered to his decision.

On 4 August 1997 Mr. Cakabay's solicitors sent to the Secretary of State a purported "notice of appeal to a special adjudicator" against "the Secretary of State's decisions dated 28 July and I August to refuse to recognise me as a refugee". On receiving a response from the Secretary of State that those letters did not constitute appealable decisions, Mr. Cakabay's solicitors on 11 August 1997 served the purported notice of appeal upon the appellate authority and applied for leave to move for judicial review of "the decision of the Secretary of State... to remove the applicant despite his having appealed against the refusal of his fresh claim for asylum". At the hearing of his application two days later, Sedley J suggested that the most expeditious way of resolving the issue would be for the Secretary of State to apply for an order of prohibition to restrain the authority from entertaining an appeal against the Secretary of State's refusal to treat the representation by Mr. Cakabay as a "fresh application for asylum" and against his refusal to grant asylum in response to that "fresh application", and gave leave to the Secretary of State to apply for such relief

The Secretary of State adopted this course and made application for the order of prohibition and in addition declaratory and ancillary relief. Both the application by Mr. Cakabay and the application by the Secretary of State have come before me. Though it is the respondent to the application by the Secretary of State, the authority has played no active part in the proceedings, having indicated that it is content to abide by the outcome. The application by the Secretary of State is opposed by Mr. Cakabay as an interested party. It is agreed that the application by the Secretary of State should be heard before the application by Mr. Cakabay, and I shall accordingly in this judgment deal only with the application by the Secretary of State. I should add for completeness that Mr. Cakabay shortly before this hearing began supplied further information to the Secretary of State in support of his claim to asylum. This has however no bearing on the application before me.

The Statutory Scheme

Section 3(l) of the Immigration Act 1971 ("the 1971 Act") provides:

"... where a person is not a British citizen

(a) he shall not enter the United Kingdom unless given leave to do so in accordance with this Act;"

Section 3(2) authorises the Secretary of State to lay down rules as to the practice to be followed in the administration of the Act for regulating the entry into and stay in the United Kingdom of persons required by the Act to have leave to enter. Pursuant to this power, he has laid down the immigration rules.

Distinct criteria, rules and procedures are applicable in cases where there is and where there is not a claim to asylum. In both cases, the power to give or refuse leave is to be exercised by immigration officers (see section 4(l)). In non-asylum cases an appeal is sometimes possible from the decisions of immigration officers to adjudicators and from the decisions of adjudicators (with leave) to the Tribunal. For the purposes of the 1971 Act an appeal is to be treated as pending "during the period beginning when notice of appeal is duly given" (see section 33(4)) and in certain cases an appeal cannot be pursued until the applicant has left the United Kingdom (see section 13(3) and (3A)); and in others directions for removal from the United Kingdom are to be stayed so long as the appeal is pending (see schedule 2, paragraph 28).

In cases of claims to enter or remain in the United Kingdom on grounds of asylum, the criteria, rules and procedures reflect the treaty obligations assumed by the United Kingdom, the special character of those applications and the need for particular expertise in handling and deciding them. Rule 328 of the immigration rules provides:

"328.All asylum applications will be determined by the Secretary of State in accordance with the United Kingdom's obligations under the United Nations Convention and Protocol relating to the Status of Refugees. Every asylum application made by a person at a port or airport in the United Kingdom will be referred by the Immigration Officer for determination by the Secretary of State in accordance with these Rules."

The Asylum and Immigration Appeals Act 1993 ("the 1993 Act") contains the following relevant provisions:

"Section 2.Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which shall be contrary to the Convention [i.e. the Geneva Convention relating to the Status of Refugees, 28 July 1951, Cmnd. 9171 and the New York Protocol 31 January 1967, Cmnd. 3096]."

"Section 6.During the period beginning when a person makes a claim for asylum and ending when the Secretary of State gives him notice of the decision on the claim, he may not be removed from, or required to leave, the United Kingdom."

"Section 8.Appeals to a Special Adjudicator

(1)A person who is refused leave to enter the United Kingdom under the 1971 Act may appeal against the refusal to a special adjudicator on the ground that his removal in consequence of the refusal would be contrary to the United Kingdom's obligations under the Convention [i.e. the Geneva Convention relating to the Status of Refugees, 28 July 1951, Cmnd. 9171 and the New York Protocol 31 January 1967, Cmnd. 3096].

(2)A person who has limited leave under the 1971 Act to enter or remain in the United Kingdom may appeal to a special adjudicator against any variation of, or refusal to vary, the leave on the ground that it would be contrary to the United Kingdom's obligations under the Convention for him to be required to leave the United Kingdom after the time limited by the leave.

(3)Where the Secretary of State:

(a)has decided to make a deportation order against a person by virtue of section 3(5) of the 1971 Act, or

(b)has refused to revoke a deportation order made against a person by virtue of section 3(5) or (6) of that Act, the person may appeal to a special adjudicator against the decision on the ground that his removal in pursuance of the order would be contrary to the United Kingdom's obligations under the Convention;

(4)Where directions are given as mentioned in section 16(l)(a) or (b) of the 1971 Act for a person's removal from the United Kingdom, the person may appeal to a special adjudicator against the directions on the ground that his removal in pursuance of the order would be contrary to the United Kingdom's obligations under the Convention."

Schedule 2, paragraph 2 to the 1993 Act provides:

"Scope of new rights of appeal

2.A person may not bring an appeal on any of the grounds mentioned in subsections (1) to (4) of section 8 of this Act unless, before the time of the refusal, variation, decision or directions (as the case may be) he has made a claim for asylum."

Section 33(4) of the 1971 Act applies in case of asylum as in case of non-asylum appeals and accordingly an appeal is to be treated as pending during the period beginning when notice of appeal is duly given (see schedule 2 paragraph 4(2)(ff) of the 1993 Act, added by schedule 3 paragraph 5 of the Asylum and Immigration Act 1996). Further a stay is imposed in all asylum cases on removal of the applicant from the United Kingdom so long as the appeal is pending (see schedule 2 paragraph 9 of the 1993 Act.

In summary under the statutory scheme applicable in case of asylum (as opposed to other) applications:

(1)if there is to be any question of an appeal on asylum grounds the requirement is imposed that there is a separate and distinct claim for asylum (see paragraph 2 of schedule 2 of the 1993 Act);

(2)the validity of that claim is determined by the Secretary of State, (for which purpose there is established a specialist asylum unit at the Home Office): see immigration rule 328;

(3)there is provision for appeals against the decisions specified in section 8 of the 1993 Act to specialist "special adjudicators" and from such adjudicators (with leave) to the Tribunal; and

(4)an applicant should be not removed from the United Kingdom pending the decision on his claim by the Secretary of State or in any appeal to the special adjudicator or the Tribunal (see paragraph 9 of schedule 2 of the 1993 Act).

Jurisdiction of special adjudicator

Mr. Cakabay argues that the special adjudicator has jurisdiction to decide the issue in this case, namely whether his claim is fresh or not, that the special adjudicator by his expertise and experience is equipped with specialist knowledge not shared by the court, and the court should refrain from interfering with his exercise of his statutory jurisdiction: and the court should only interfere after the special adjudicator has made his decision if that decision is open to challenge in judicial review proceedings on one of the established grounds. I shall consider each part of this submission.

The special adjudicator has only jurisdiction to hear those appeals which section 8 of the 1993 Act authorises to be brought to the special adjudicator. Thus an appeal is possible to the special adjudicator under section 8(l) against a refusal of leave to enter, under section 8(2) against a variation or refusal to vary limited leave to enter, under section 8(3) against the making of a deportation order or the refusal to revoke it, and under section 8(4) against directions for removal from the United Kingdom. It is to be noted that the appeal is against the refusal, the variation, the deportation order or the removal directions, and not the rejection of the claim to asylum, though that is the ground of appeal.

But beyond the jurisdiction to decide on their merits appeals lying within his jurisdiction, the special adjudicator (in common with courts and tribunals of limited jurisdiction) has jurisdiction to decide in any case whether he has jurisdiction to hear and decide the appeal: see R v Fulham, Hammersmith and Kensington Rent Tribunal ex parte Zerek [1951] 2 KB 1 at 6 and 10-11 and Williams and Glyn's Bank v Astro Dinamico [1984] 1 WLR 438 at 443B-E. This is a jurisdiction which has been asserted in a number of cases in face of and overruling objections on the part of the Secretary of State to the existence of jurisdiction on grounds of law and procedural irregularity: see eg Lokko v Secretary of State [1990] Imm. AR Ill at 116-7; Secretary of State v Ken'aan [1990] Imm AR 544 at 547, 549-550 and 553-4; and Pai Yu Wong v Secretary of State (IAT 26 July 1995 TH/62116/94) at pages 23-4.

The jurisdiction of the special adjudicator is triggered when a notice of appeal is duly given. In any case where the right to serve, and accordingly the validity of, the notice of appeal is in issue, since this goes to his jurisdiction, the special adjudicator must first decide this question. If Mr. Cakabay's "notice of appeal" comes before the special adjudicator, he must decide whether there has been a decision by the Secretary of State specified in section 8 of the 1993 Act. There can have been no such decision if there was no fresh application. The critical issue, as it seems to me, is not whether the special adjudicator has the jurisdiction to decide this question, but the legal test to be applied by the special adjudicator in making this decision. The Secretary of State says that the test is whether the Secretary of State has himself decided that there was no fresh application, for that is conclusive. According to Mr. Cakabay the test is whether the special adjudicator (after giving full weight to the contentions of the Secretary of State) considers that there was a fresh application.

The issue whether there was a fresh application in this case and accordingly which of the two is the correct test could be left to be decided by the special adjudicator. But the issue is in my view more suitable to be decided by this court as it is a question of law of general application: there is no scope for the special adjudicator to bring into play his specialist knowledge, and there is the advantage of an immediate authoritative statement of the relevant law.

Fresh claim

(a)Definition

Schedule 2 paragraph 2 of the 1993 Act provides that no person may bring an appeal on any of the grounds mentioned in subsections (1) to (4) of section 8 unless, before the time of the refusal, variation, decision or directions (as the case may be) he has made a claim for asylum.

The 1993 Act makes no express provision for a second claim after a first claim has failed. Parliament cannot have intended that a second claim should be barred where material and credible new evidence supporting a credible claim only becomes available after the first claim has failed. Equally Parliament cannot have intended that the removal of an applicant should be indefinitely deferred pending determination of an indefinite succession of appeals. The Court of Appeal in Onibiyo v Secretary of State [1996] 2 AER 901 ("Onybiyo") reconciled these conflicting considerations. It held that a person could during a single uninterrupted stay in the United Kingdom make more than one claim for asylum, but only if the later claim was a fresh claim.

"The acid test must always be whether, comparing the new claim with that earlier rejected, and excluding material on which the claimant could reasonably have been expected to rely in the earlier claim, the new claim is sufficiently different from the earlier claim to admit of a realistic prospect that a favourable view could be taken of the new claim despite the unfavourable conclusion reached on the earlier claim." per Sir Thomas Bingham MR at page 911(d).

This test is reflected in rule 346 of the immigration rules (adopted with effect from the 1 September 1996):

"When an asylum applicant has previously been refused asylum during his stay in the United Kingdom the Secretary of State will determine whether any further representations should be treated as a fresh application for asylum. The Secretary of State will treat representations as a fresh application for asylum if the claim advanced in the representations is sufficiently different from the earlier claim that there is a realistic prospect that the conditions set out in paragraph 334 will be satisfied [inter alia he is a refugee and refusal of his application would result in his being required to go to a country of persecution]. In considering whether to treat the representations as a fresh claim, the Secretary of State will disregard material which:

(i)is not significant; or

(ii)is not credible; or

(iii)was available to the applicant at the time when the previous application was refused or when any appeal was determined".

(b)The questions

Two questions are raised by this reconciliation. The first ("the Appeal Question") is whether an appeal lies to the special adjudicator against the decision of the Secretary of State that a claim is not a fresh claim. The second ("the Precedent Fact Question") is whether, on a challenge to such a decision of the Secretary of State in judicial review proceedings (and the availability of a challenge in such proceedings has never been in doubt), the decision of the Secretary of State is open to challenge on the ground that his decision (objectively viewed) is wrong and that the correctness of his decision is a precedent fact to the validity of his decision; or whether his (subjective) decision can only be challenged on Wednesbury grounds, in effect on the ground that it is irrational and one no reasonable Secretary of State property directed could reach.

(c)The authorities

I shall have to consider the guidance given on these questions by the authorities. The Appeal Question arose in R v Secretary of State ex parte Manvinder Singh [1996] Imm AR 41 ("Singh"). In that case, whilst refusing to recognise a second application for asylum as a fresh application, (as the Secretary of State somewhat remarkably perhaps conceded) the Secretary of State had made fresh removal directions. The applicant issued judicial review proceedings challenging the decision of the Secretary of State that the second was not a fresh application and that the applicant had no right of appeal to the special adjudicator. Carnwath J held that an appeal lay under section 8(4) of the 1993 Act against those removal directions, and the special adjudicator using his expertise should on such appeal decide whether the claim was a fresh claim or not. Carnwath J however held that on the evidence it was so clear that the claim was not fresh that an appeal hearing would be pointless. His reasoning in favour of the existence of the right of appeal to the special adjudicator was as follows:

"The issue whether there has been a ‘fresh claim' arises, if at all, under paragraph 2 of schedule 2. It is expressed as a procedural bar. As such it would normally be a matter to be decided, in the first instance, by the court or tribunal to which the appeal has been made-not by one of the parties. Thus the natural inference from the rules is that the question, whether or not there has been a fresh claim for the purposes of schedule 2, is one to be determined by the adjudicator. The Secretary of State can make representations but one would not expect him, as a party, to be able to determine the matter."

The Court of Appeal affirmed the judgment of Carnwath J but expressly left open as important and undecided the Appeal Question (9 December 1995, unreported).

In Onibiyo (supra) the Appeal Question was not raised by the applicant in the proceedings: he acquiesced in the earlier denial by the Secretary of State of any right of appeal. Accordingly no argument proceeded on this question, and the Court of Appeal (like the parties) proceeded on the assumption that there was no right of appeal to the special adjudicator. The applicant only raised the Precedent Fact Question. In his judgment (with which the other two members of the Court of Appeal agreed) Sir Thomas Bingham MR, held (dismissing the appeal) that the decision of the Secretary of State (that the claim in that case was not fresh) was clearly correct. He went on however to express the tentative view that the judgment of the Secretary of State whether a claim was fresh could only be challenged on Wednesbury grounds:

"...the answer to the question whether or not a fresh "claim for asylum" has been made, will depend, not on the finding of any objective fact, nor even on a literal comparison of the earlier and the later claim, but on an exercise of judgment, and this is a field in which initial judgments are very clearly entrusted to the Secretary of State."

In R v Secretary of State ex parte Ravinchandran (No 2) [1996] Imm AR 418 at 426, ("Ravinchandran") both the Appeal and the Precedent Fact Questions were raised. On the Appeal Question Dyson J refused to follow the decision of Carnwath J. He said:

"The difficulty I find with the reasoning of Carnwath J is that in the absence of a prior claim for asylum, an appeal may not be brought. Although the Court of Appeal in ex parte Onibiyo did not expressly disapprove this part of the decision of Carnwath J, it seems to me that it must impliedly have done so... I conclude therefore that when the Secretary of State decides that a fresh claim for asylum has not been made, that decision does not trigger a right of appeal under Section 8".

Dyson J went on to adopt the answer tentatively expressed by the Court of Appeal in Onibiyo to the Precedent Fact Question.

In R v Secretary of State ex parte Boybeyi (24 January 1997, unrepored) Sedley J, after expressing certain misgivings, followed the decision of Dyson J on the Precedent Fact Question. The Appeal Question was not raised in that case: indeed Sedley J pointed out in his judgment that such an appeal was not an option in that case, since such an appeal would have been out of time. His judgment was affirmed on appeal (14 May 1997, unreported).*[2]

(d)Decision

Against this background, it was in my view open to Mr. Cakabay to submit that I am not bound by authority as to the answer to be given to the Appeal Question and should exercise my own judgment, and this I propose to do.

In my view, no appeal lies to the special adjudicator for the following reasons:

(1)the jurisdiction of the special adjudicator is confined to cases where there is an appeal from a decision of the Secretary of State to the effect set forth in section 8 of the 1993 Act. A decision not to treat further representations as a fresh application is not a decision failing within section 8;

(2)the decision to treat further representations as a fresh application is a conditions precedent to the making of a decision by the Secretary of State on such an application and accordingly to the making of a decision to the effect set forth in section 8. Unless and until the Secretary of State accepts the further representations as a fresh application there is no occasion for making any decision falling within section 8;

(3)both a fresh application and an adverse decision on that application are required to trigger the right of appeal under section 8. Prior to both these conditions being satisfied, the only remedy available to an applicant lies in an application in judicial review proceedings for orders requiring the Secretary of State properly to consider and determine the application;

(4)the fact that the refusal to treat further representations as a fresh application may have the same practical effect for the applicant as an adverse decision which falls within section 8 does not mean that it is such an adverse decision or has the like legal consequences in respect of a right of appeal;

(5)Parliament could have made special provision conferring on an applicant the like right of appeal against the decision not to treat further representations as a fresh application as against the decisions specified in section 8. Parliament might have taken the view that this course was just and appropriate since the special adjudicator has specialist knowledge enabling him to make a particularly well-informed judgment whether the application was fresh. It did not do so;

(6)it may be inferred that Parliament, in omitting any such right of appeal, was concerned that the conferment of such right of appeal would have been the passport to, or at least create a real risk of, serious abuse in the form of a potentially never ending succession of meritless appeals during the pendency of which the applicant would be immune from removal from the United Kingdom. There are statutory provisions eg for expediting appeal and summary hearings of appeals, but these could only mitigate and not suppress the mischief. The risk of abuse is obviated by conferring on the Secretary of State the sole and unappealable right to decide what is or is not a fresh application, subject only to a challenge in judicial review proceedings on Wednesbury grounds. There is a cost to the applicant in that he has no remedy if the decision of the Secretary of State is wrong, but not irrational: but that is a cost which Parliament has required to be paid;

(7)I recognise that my view may be tantamount to reading into paragraph 2 of schedule 2 to the 1993 Act between the words "has made" and "a claim" the further words "what the Secretary of State decides is". But these words in my view only make explicit what is already implicit, in particular reading that paragraph with section 8;

(8)this view is supported by three further considerations. (a) the Court of Appeal in Onibiyo proceeded on the assumption that the answer to the Appeal Question was in the negative. It may be doubted whether it would have taken this course if it had any doubts on the correctness of the assumption; (b) it is well-established law that the decision of the Secretary of State is subject to challenge in judicial review proceedings. It is difficult to reconcile the ready availability of this remedy with the availability also of an appeal against the decision to the special adjudicator; it would be inappropriate as a matter of course to allow the appeal procedure to be leapfrogged in this manner: see eg R v Secretary of State ex parte Abdi [1993] Imm AR 35; and (c) the view accords with the most recent judgment on this question, namely that of Dyson J.

Applying the above principles, the judgment whether or not there has in this case been a fresh application is for the Secretary of State alone to make and his judgment is that there is no such fresh application. Mr. Cakabay does not, as he no doubt cannot, challenge this decision on Wednesbury grounds. The decision accordingly stands, and in consequence (as is apparent from the correspondence) there has not been and indeed could never have been any decision falling within section 8. There can therefore be no appeal to the special adjudicator and the purported notice of appeal is a nullity. The point of law is quite clear: there is no issue of fact to be investigated. The special adjudicator, if he exercised his jurisdiction to determine whether an appeal to him lay in this case and whether the purported notice of appeal was valid, would be impelled to hold that, in view of the decision to this effect made by the Secretary of State, there was no decision falling within section 8 and accordingly the notice of appeal is without effect. It is obviously competent and (in view of the general importance of the issue) sensible (as suggested by Sedley J) that the issue of jurisdiction be decided on this application by this court and I have so decided it.

Conclusion

I accordingly grant the Secretary of State a declaration to the effect that the special adjudicator has no jurisdiction to hear Mr. Cakabay's purported appeal and the purported notice of appeal has no effect.

I wish to record my debt to counsel for their industry and assistance and their patience under questioning by me.

Declaration granted

Solicitors: Treasury Solicitor, Howe & Co London, W10

---

[1]1Mr Cakabay's application was for leave to apply for judicial review. The application was adjourned. [2]I*See now [1997] Imm AR 491.